Judge reiterates artifact retrieval order

He rejects the new argument that items could be damaged

A federal judge says he would not change his order for retrieval of artifacts from a Big Island cave even though a native Hawaiian group argues that such a move could cause a cave collapse and destroy some of the items.

U.S. District Judge David Ezra weighed in yesterday on a federal lawsuit filed in August by two native Hawaiian organizations that demand 83 items be retrieved from Kawaihae, or Forbes, Cave on the Big Island. The groups want the items held by the Bishop Museum until 14 competing native Hawaiian claimants decide on their disposition.

On Sept. 2, Ezra ordered the native Hawaiian group Hui Malama I Na Kupuna 'O Hawaii Nei to return the 83 items that the group's leaders said they had secretly reburied in the cave in 2001. Hui Malama officials said they had reburied the items to honor the wishes of ancestors just after it took custody of them from the Bishop Museum under terms of a one-year loan.

Hui Malama told Ezra that retrieving the items would desecrate an ancestral burial ground and violate their constitutional rights to the free exercise of religion. Hui Malama has since appealed Ezra's ruling to the 9th U.S. Circuit Court of Appeals in San Francisco, arguing in part that the cave, which was secured from thieves with cement, would collapse if reopened.

Ezra, addressing that point in his supplemental filing yesterday, wrote that Hui Malama in its appeal "for the first time raised the argument that disturbance of the objects in the cave would cause 'potential' destruction of the items through a collapse of the cave in which they are allegedly housed. Defendants have raised this argument despite the fact that, while arguing before this court, they did not affirmatively acknowledge either the exact whereabouts of the cave or the fact that the objects were all definitively located within the cave."

Ezra said it is not clear whether the items are in the cave, so the newly offered threat of a cave collapse has no effect on his decision that the items should be removed.

Alan Murakami, an attorney with Native Hawaiian Legal Corp., which is representing Hui Malama, said he was "puzzled" by Ezra's supplemental order.

"I've never seen a lower court act this way once an appeal is taken," Murakami said. "I don't know the purpose."

George Van Buren, an attorney representing Abigail Kawananakoa, representative of one of two native Hawaiian organizations that have demanded the retrieval of the 83 items, said, "We've been concerned, and remained concerned, about the safety of the items, and believe they need to be returned to a safe place."